Be Careful What You Ask For…

Last night I was in a rage, and just about every other lawyer and legal type on Twitter was as well. And all because of a paper skeleton.

For those of you who didn’t see last night’s ‘The Apprentice’, the applicants (read ‘contestants’) were asked to buy 9 items over the course of the day. The winning team would be the one which, after fines had been applied for any missing items, had spent the least. A brief description of each item, some with specific qualifications, accompanied each healdine. On of the items was described thus:

So each team had to get a Human Skeleton which met 2 conditions: 1) It was Anatomically-correct, and 2) it was ‘full-size’, defined as 150cm tall. Simple. Except, one of the contestants (a lawyer) noticed that nothing else was asked. So, instead of doing what the other team did and buying the science classroom staple of a plastic model on a stand, he bought a paper, skeleton which, when constructed, would be 180cm tall.
Come judgement time, Alan Sugar was not impressed by this inventive thinking. Notwithstanding the fact that what had been bought did meet all the criteria, he fined them as if they’d bought nothing at all because it wasn’t what he meant for them to buy. Because of this fine – and this fine alone – the team lost the task and so one of them was ‘fired’ (i.e. eliminated). It was the lawyer, who had spotted the loophole in the first place, that was sent packing. And I was OUTRAGED!

There are many ways to interpret a law or rule, and the one you use can drastically the meaning you draw from it. In law there different approaches, and using #SkeletonGate as an example – lwe can see how they work, and whetehr Alan Sugars decision can be justified by any of them.

The Literal Approach
The first, and most basic method is to take the words at face value and see where you end up. Under this approach, would our unlucky lawyer have survived the chop?

Is what he bought skeleton anatomically correct? – Yes.

Is what he bought at least 150cm tall? – Yes.

So that seems fine…except using the literal approach would force us to ask one more question, namely:

Is what he bought a Human skeleton?

The answer must be no. What he bought was a model of a human skeleton. A human skeleton is not made out of paper. By taking the literal approach, the other team’s effort would also attract a fine too, cause they’re not made out of plastic either. A human skeleton is, believe it or not, made out of bone. But clearly Alan Sugar obviously wasn’t asking them to buy the remains of a person…so there must be another way.

The Golden Rule
The Golden Rule is the same as the Literal approach with one addendum. If, by taking the literal meaning of the words on the page, the result is so absurd that it cannot possibly be what was meant, then you deviate from that absurdity – but only as much as is necessary for a sensible meaning.
So, in this case, it’s clear that Alan Sugar wasn’t asking the teams to buy an actual human skeleton, just a model of one since

That’s probably illegal, and

His actions demonstrated that this was not the case (i.e. he accepted the other team’s model skeleton).

So in this case, how can Sugar accept the plastic skeleton, but reject the paper one? If the material its made from isn’t important, how can it matter? He said that the teams knew fine well what he wanted and that the team should have taken this into account. So…should they?

The Purposive Approach
The final commonly used method of interpretation is the ‘Purposive Approach’. Here the dictionary meaning of the words isn’t as important. They are a guide to what is meant, but not the whole story. You have to look behind the words and figure out what was the purpose of the rule. Why was, for example, the word “above” used as opposed to “on top of”. What did the drafter mean when they wrote what they did? You can use all kinds of things to figure this out, as the aim is to get the intention behind the words, so long as the words themselves can reasonably be taken to capture that intention.
So, then, what did Alan Sugar mean when he wrote the words “HUMAN SKELETON – SPECIFICATIONS: Full-Size Anatomical Skeleton; Minimum 150cm tall”? It’s evident now that he wanted a plastic model of a human skeleton that was at least that height. So that’s that then. The clever lawyer was too clever and went too far trying to outsmart the game…right?
Well, we’re not quite done yet. The word “specifications” might just prove Lord Sugar’s undoing – not because of what it says, but because of what it doesn’t say. Sugar took the time to make very clear certain conditions that had to be met in order for the task to be completed. He specified those conditions and those conditions only. It would be remiss of anyone to assume there were further conditions to be applied, such as colour, girth etc. It would be unreasonable, on the basis of the words, to assume that there was a further restriction. Therefore, by explicitly applying certain requirements that had to be met, Sugar had implicitly said that no further restrictions existed. So the material wan’t important – so the paper skeleton, while not really what Alan Sugar wanted, was a reasonable understanding on the basis of the words of the requirement.

BBC1 viewers last night witnessed a travesty of justice play out before their eyes. On any normal approach to interpreting the task, Alan Sugar got it wrong and unfairly ditched a contestant. On the literal approach, both teams failed to provide a skeleton that was up to spec. and so both should be fined – changing nothing. Applying the Golden Rule, by accepting a plastic skeleton, he demonstrated that what the thing was made of wasn’t important. Even under a Purposive approach, when intention is key, by specifying some conditions, but not others, it wasn’t obvious that the skeleton had to be made of plastic, so the paper one should have still been accepted.
In the end, what happened was obvious. There was absolutely no doubt that Alan Sugar was looking for a classroom skeleton. But he just assumed that everyone would telepathically know that anything else would not be accepted. The lawyer used his legal smarts, realised there was a loophole, and took advantage of it. Alan Sugar didn’t get what he wanted, but definitely got what he asked for. From where I was watching, it looked like he got outsmarted and didn’t like it. I only wonder if he would accept his own argument when it comes to business contracts or leases. I seriously doubt it.

All of this has a serious side to it, of course. The questions of “What does this mean?” and “How will this be understood?” are of utmost importance when it comes to Acts of Parliament (and devolved legislatures). The minister or politician knows what they mean to say, but have they actually said it. It’s poor drafting and lazy assumptions that has lead to the massive tax loopholes that companies and wealthy individuals can take advantage of. The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was and still is rightfully slagged rotten because of its lazy drafting, massively over extending its intended scope and making the Act far too heavy handed. Thanks only to the (technically unfounded) actions of the judiciary has the situation not got out of hand.
So, in the end, last night all that happened was that poor drafting led to an unfortunate elimination on a game show and a few jokes on Twitter. But, at the highest level, what happened last night can be the difference between nothing happening someone committing an offence for the most inane of acts…and make no bones about it, it happens all the time.